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Music Fans Face Raw Copyright Deal

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Game show aficionados will recall the 1960s and 1970s hit Let's Make a Deal, in which host Monty Hall would tempt contestants into trading prizes for whatever lay behind one of three doors. While there were great prizes behind some doors, there was always a booby prize behind one.

Recent copyright developments may soon leave music lovers feeling much like those contestants, but with the prospect of losing no matter which door they choose.

Behind door No. 1 sits Canada's digital copyright reform process. While copyright policy makers zig-zag the country this month as part of a national consultation process, pressure for legal protection for technical measures intensifies. These measures aim to cut down on digital music swapping by blocking users' ability to copy songs through encryption, intensifies. If adopted, the law would prohibit users from breaking the encryption, even if only to play a CD they lawfully purchased. In fact, if Canada follows the U.S. example, anyone who distributes or even links Web pages to a device capable of breaking the encryption faces the prospect of liability.

Although Brian Robertson, president of the Canadian Recording Industry Association, claimed last year that without technical measures protection the music labels would be unwilling to launch on-line music subscription services in Canada, the Canadian launch of Sony and Vivendi Universal's Pressplay next month suggests that this is simply not the case.

Behind door No. 2 sits the growing use of copy-protected CDs. During the past year the music labels have begun to distribute millions of CDs worldwide featuring technology that blocks users from making digital copies of the music they play on their computers.

Unfortunately, the technology does far more than that. I picked up a copy of the CD soundtrack More Fast and Furious on a recent trip to the United States. When I tried to play it in my Powerbook's CD-ROM drive, the CD was rejected. Similar experiences have been reported with computers as well as other CD drives.

In fact, copy-protected CDs may only be the beginning. Disney and other Hollywood interests are backing a proposal that would require that copy-protection measures be installed on virtually all consumer electronics equipment capable of making copies.

As if doors one and two were not bad enough, behind door No. 3 sits the proposed blank audio media levy announced last week. In case you missed it, the Canadian Private Copying Collective (CPCC), a non-profit group that represents copyright holders of sound recordings, submitted its recommendations for applying tariffs on the sale of blank tapes, CDs, and other recording media in Canada.

In light of the escalating incidence of personal music copying, the proposal calls for significant increases in the levy on blank CDs and recommends extending the levy to MP3 players as well.

The detrimental impact of such a scheme would be immediate. Canadian consumers would likely look to the United States for blank CDs and digital music equipment, creating a grey market in Canada that would hurt retailers. Moreover, thousands of firms that use blank CDs for purposes far from copying music would have to pay the levy, creating a subsidy from industries such as software development to digital music users.

The news of the potential copyright levy offers at least one positive effect, however, as it may end the Canadian recording industry's claims that users who download music on-line are thieves. The Canadian Copyright Act contains an exemption for personal, non-commercial copies of music, so that making personal copies through services such as Napster does not constitute copyright infringement since users already pay for that right through the levy. The recording industry should not have it both ways — users can't be pirates when they download music and then pay taxes for doing so.

While the final copyright levy is likely to be much lower than the CPCC's initial proposal, the overall effect is that consumers will ultimately be paying far more for far less. The combination of copy-protected CDs and legal protections for technical measures could leave consumers in Canada paying for CDs to play on their audio systems, paying for the digital versions to play on their computers or MP3 players, and then paying for the right to play music on their computers or MP3 players thanks to the copyright levy. Should that come to pass, consumers will undoubtedly begin desperately searching for lucky door No. 4.

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